Vote near on Gillibrand plan to address military assaults

Sen. Kirsten Gillibrand, D-N.Y., right, speaks while U.S. military leaders testify in June before the Senate Armed Services Committee on pending legislation regarding sexual assaults in the military.(Photo: Win McNamee)

WASHINGTON – A proposal to let military prosecutors rather than commanders make decisions on whether to prosecute sexual assaults in the armed forces is now backed by a majority of lawmakers in the U.S. Senate, according to the proposal's author, Sen. Kirsten Gillibrand.

But the New York Democrat still doesn't have the 60 votes she expects will be needed to overcome a possible filibuster. Gillibrand wants to submit her proposal as an amendment to a defense authorization measure that should come to the Senate floor vote within 10 days.

With 25-to-30 senators still undecided on her legislation, Gillibrand is scrambling to make the case for it in private meetings with as many senators as she can.

"Most senators are extremely grateful for the time," she said last week, following separate closed-door meetings with two undecided Republicans. "This is a serious vote for them so they want to consider it and be thoughtful in that approach."

To get 60 votes, Gillibrand said she may narrow her proposal to cover only sexual offenses. Right now, it covers all criminal offenses carrying a potential jail sentence of at least a year.

"I prefer our amendment the way it's written today," Gillibrand said. "I think it's cleaner to have a bright line for all serious crimes because at the end of the day every victim and defendant deserves a blind justice system, one that is not biased in any way. And they deserve to have trained military prosecutors review their cases. But if we can get to 60 with the more focused approach, I'd be willing to take that as a first step toward larger reform down the line.''

Currently, military prosecutors offer recommendations to commanders, who make final decisions on whether to prosecute.

Pentagon officials estimated earlier this year that the number of cases of unwanted sexual contact in the military increased to 26,000 in 2012, up from 19,000 in 2010. The estimate didn't break out how many cases involved assault or rape and didn't clearly define what constitutes unwanted sexual contact.

Despite its ambiguity, the report made a deep impact on lawmakers. They also heard compelling testimonials from victims — both male and female — who complained of a military culture thatdiscouraged them from reporting allegations of unwanted sexual contact and allowed retaliation by alleged perpetrators.

Congress responded by approving a number of reforms that are inching closer to becoming law.

The House-passed version of the fiscal 2014 National Defense Authorization Act and a corresponding bill approved by the Senate Armed Services Committee would strip commanders of their authority to dismiss a court-martial finding. They also would allow sexual assault victims to apply for reassignment to distance themselves from an alleged perpetrator.

Gillibrand, who chairs the Senate Armed Services Subcommittee on Personnel, noted that the full committee approved 11 of the 12 reforms she backed.

The Senate bill calls for an automatic higher-level review of a commander's decision not to prosecute a sexual assault allegation. It also would require each military service to establish a Special Victims' Counsel.

But neither version of the authorization bill would put decisions on whether to prosecute serious sexual assault cases in the hands of lawyers with the Judge Advocate General Corps.

"This is a change survivors have asked for," Gillibrand said. "The only change they ask for over and over and over again is taking it out of the chain of command."

Top military leaders have opposed the move. Most members of the Senate Armed Services Committee agreed with generals that keeping prosecution-related decisions in the hands of military commanders helps maintain discipline and good order.

McCaskill, a former county prosecutor who specialized in sex crimes, argues that removing commanders from the process would let them escape accountability. And she notes that some prosecutors are reluctant to pursue charges if they don't have an open-and-shut case, because it can reflect poorly on their win-loss record.

"We are aware of ... close to 100 cases over the last two years where prosecutors have said 'Don't go forward,' and the commanders have insisted," McCaskill said. "Under Kristen's scenario, those cases would not go forward. This new regime of lawyers would have all the power around these prosecutions, and they would also be the last word."

McCaskill is one of only three of the Senate's 20 women — along with Republicans Kelly Ayotte of New Hampshire and Deb Fischer of Nebraska — who oppose Gillibrand's amendment.

"I think we're all trying to help victims," said McCaskill. "There's just a strong and fundamental disagreement about which way does a better job of that."